BASANTA KUMAR SARVAGYA Vs. JOGENDRA NATH DUTTA

JUDGEMENT

(1.) This appeal arises out of a suit on a mortgage-bond. Ram Nara Singha, the father of defendants Nos. 1 and 2, and Ramdhan, the husband of defendant No. 3, jointly executed a mortgage-bond in favour of Baikuntha Sarvagya, the predecessor of the plaintiffs, for a lean of Rs. 500. By this bond the two mortgagors hypothecated the properties set out in the schedule to the plaint, of which each owned an eight anna share. The bond was executed on the 4th Bhadro 1304 B. Section and stipulated for interest at the rate of 13 annas 4 pies per cent, per mensem compound interest with yearly rests. The plaintiff alleged that Rs. 146 was realised by him on different dates and that on an account being made up on the 22nd Bhadro 1317 B. Section the sum of Rs. 1,138 was found due by the defendants. The defendant No. 3 admitted liability on her husband s account, for half this amount. The plaintiffs gave her a remission of some of the amount due and released her from liability under the mortgage-bond in suit on her executing a fresh mortgage-bond for Rs. 450 hypothecating her 8 anna-share in the property mentioned in the schedule to the plaint. The plaintiffs now sue to recover Rs. 659 with interest from defendants Nos. 1 and 2. They have joined defendant No. 3 as a party to the suit and also claimed in the alternative a decree against the 16 annas of the property under mortgage, including in the claim the amount of Rs. 450 admitted by defendant No. 3 to be due from her.

(2.) Both the lower Courts have dismissed the suit, holding that it is not maintainable in its present form on the ground that the mortgage contract is indivisible.

(3.) The suit has been contested by defendants Nos. 1 and 2 who are minors represented by their guardian and mother, Lakshmi Priya Dutt. Before the first Court an attempt was made to prove that she was present at the making up of accounts but this was found not to have been proved. Before the lower Appellate Court this finding does not appear to have been questioned. There it was contended that the mortgagee had the right to split up the contract as the case fell within the exception to Section 60 of the Transfer of Property Act. I think the lower Appellate Court was right in holding that the provisions of that exception are not applicable to the facts of the present suit. According to the plaintiff s case he has not acquired the share of defendant No. 3 as mortgagor, since before taking the fresh mortgage of her interest in the property originally mortgaged he released it from its liability under the original mortgage. Assuming that the second mortgage was an acquisition, he did riot acquire in whole or in part the share of the mortgagor.